Published on: 30 August 2023 at 12:45 IST
Court: Supreme Court
Citation: Municipal Corpn. Hyderabad V. Sunder Singh
Honourable Supreme Court of India has held that the powers of the Appellate Court to pass an order of remand back to the Civil Judge are extremely limited under the scope of Order 41 Rule 23 Code of Civil Procedure, 1908. It is held that an order of remand cannot be passed on Ipse Dixit of the court.
17. Order 41 Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court.
18. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.
Drafted By Abhijit Mishra
